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Another setback for Site C opponents

The British Columbia Supreme Court has rejected yet another challenge to BC Hydro’s Site C project (the “Project”). In Prophet River First Nation v. British Columbia (Environment), 2015 BCSC 1682, the court rejected a petition for judicial review brought by two First Nations (West Moberly and Prophet River) to quash the Project’s Environmental Assessment Certificate (the “Certificate”).

This decision follows decisions in the past month dismissing separate judicial review applications brought by the First Nations in Federal Court and by the Peace Valley Landowner Association in the British Columbia Supreme Court. An injunction application brought by the First Nations in August to halt the first phase of construction on the Project was also dismissed.

For those not familiar with it, the Project involves the construction of a large hydroelectric dam and related facilities approximately seven kilometres southwest of Fort St. John, in northeastern British Columbia. The cost of the Project is estimated at approximately $8 billion, and the dam is expected to be operational sometime in 2024.

The Certificate was issued on October 24, 2014 by a Joint Review Panel (the “Panel”), established by an agreement between Canada and British Columbia to meet the requirements of the Environmental Assessment Act (BC) and the Canadian Environmental Assessment Act.

The assessment process took place in three stages:

In the first stage, the provincial Environmental Assessment Office and the federal Canadian Environmental Assessment Agency oversaw the preparation of environmental impact statement guidelines and BC Hydro prepared and submitted its environmental impact statement (“EIS”) for review.

In the second stage, the Panel reviewed the EIS and request additional information from BC Hydro. The Panel then held 26 days of public hearings.

In the third stage, the Panel submitted its report to the Ministers (including a Consultation and Accommodation Report) and the Ministers decided to issue the Certificate, along with 77 conditions with which BC Hydro had to comply.

Arguments

The First Nations argued that the court should quash the Certificate on both constitutional and administrative law grounds. The constitutional grounds were that the Ministers failed to determine whether the Project infringed their treaty rights and failed to satisfy themselves that the Crown had met its obligation to consult and attempt to accommodate the First Nations. The administrative law grounds were that the decision was unreasonable and that the Ministers’ conduct gave rise to a reasonable apprehension of bias.

The Province and BC Hydro responded that the Ministers had no jurisdiction to decide whether the Project constituted an infringement of the First Nations’ treaty rights, that this judicial review application was not the forum to resolve the constitutional issues raised by the First Nations, and that in any event the record disclosed no reasonable basis for concluding that the Project would infringe on the First Nations’ treaty rights and the Crown had met its obligation to consult and accommodate. They also submitted that the decision to issue the Certificate was reasonable and there was nothing in the Ministers’ conduct that gave rise to a reasonable apprehension of bias.

Constitutional Issues

The court agreed with the Province and BC Hydro that this judicial review application, and more broadly the environmental assessment process, was not designed or intended to resolve the rights-based claims advanced by the First Nations. The court noted that in issuing the Certificate the Ministers were “not making a rights-based decision but a political and policy one” and that the Certificate was not a licence to proceed with the Project, it was simply a necessary but insufficient step in the overall approval process. Looking at the statutory scheme, the court concluded “that the legislature did not intend to vest the Ministers with the jurisdiction to decide the complex question of whether the Project was an infringement of the petitioners’ Treaty 8 rights”. Accordingly, the Ministers made no error in issuing the Certificate without deciding whether the Project infringed on such rights.

The court also held that it should not decide whether the Project infringed the First Nations’ treaty rights in the context of a judicial review hearing. The court concluded that such issues could not “appropriately” be resolved in such summary proceedings, and that the appropriate forum was in an action commenced by notice of civil claim and conducted in accordance with the Supreme Court Civil Rules.

With respect to consultation, the court found that the Ministers had correctly understood the government’s obligation to the First Nations with respect to the Project. The court further found that the consultation had been adequate. The court reaffirmed that the duty to consult and accommodate does not require agreement. The object of consultation and accommodation is reconciliation between governments and First Nations. In this case, however, “that reconciliation was not achieved because the government has concluded that it is in the best interests of the province for the Project to proceed and the petitioners have concluded that there is no adequate accommodation for the effects of the Project”. The First Nations had been provided with a meaningful opportunity to participate in the environmental assessment process, and the Ministers were entitled to issue the Certificate notwithstanding their objections.

Administrative Law Issues

The First Nations argued that Ministers’ decision was unreasonable because the Ministers failed to consider relevant factors when deciding to issue the Certificate and lacked sufficient information to reasonable justify the approval of the Project. The court disagreed, finding that at most the issues raised by the First Nations suggested that it would have been open to the Ministers to reach a different conclusion than the one they did. The court also noted that the decision of the Ministers “was a polycentric one in which the Ministers were exercising a very wide discretion”, and as such the decision was entitled to a high degree of deference.

With respect to bias, the First Nations argued that existing legislative policy (restricting hydroelectric development to the Peace and Columbia Rivers) resulted in the Ministers failing to consider alternatives to the Project, and that the Ministers approached the decision to issue the Certificate with a closed mind. The court rejected both arguments, finding that the former was a collateral attack on the Clean Energy Act (which gives statutory effect to the Two Rivers Policy) and the latter lacked any evidentiary foundation.

Accordingly, the First Nations’ petition was dismissed and the Ministers’ decision to issue the Certificate upheld.

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